Arias v. 76 Taqueria No. 2 Corp. et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Order, the court adopts Judge Bloom's thorough and well-reasoned recommendations. Accordingly, plaintiff's motion for settlement approval 25 is DENIED wi thout prejudice. The parties are granted leave to file a new motion for settlement approval which addresses the concerns raised by Judge Bloom's report and recommendations 26 . The court further ORDERS: (1) plaintiff's request to withdraw her motion for default judgment 22 is GRANTED; (2) plaintiff's motion for extension of time 28 is GRANTED, and the parties shall file a new motion for settlement approval within thirty (30) days of this Order; (3) plaintiff shall serve a cop y of this Order on defendants; (4) defendants shall immediately file a notice of appearance on ECF; and (5) the parties shall consider consenting to magistrate judge jurisdiction such that Judge Bloom may rule on the motion for settlement approval without need for a Report and Recommendation. Ordered by Judge Kiyo A. Matsumoto on 7/5/2017. (Grover, Vanish)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
FIDELA ARIAS (A.K.A. ADELA ARIAS),
individually and on behalf of others
similarly situated,
Plaintiff,
-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION

15-cv-2410 (KAM)(LB)

76 TAQUERIA NO. 2 CORP. (D/B/A
COATZINGO RESTAURANT); 79-11 COATZINGO
RESTAURANT, INC. (D/B/A COATZINGO
RESTAURANT); MANUEL SANCHEZ; MAXIMO
DOE; and RUFINO ZAPATA,
Defendants.
-------------------------------------X
MATSUMOTO, United States District Judge:
On April 28, 2015, plaintiff Fidela Arias (“plaintiff”)
commenced this action against defendants 76 Taqueria No. 2 Corp.,
79-11 Coatzingo Restaurant, Inc., Manuel Sanchez, Maximo Doe, and
Rufino

Zapata

Complaint.)
2015.

(together,

“defendants”).

(See

ECF

No.

1,

Plaintiff filed an amended complaint on October 2,

(See ECF No. 11, Amended Complaint (“Am. Compl.”).)
Plaintiff alleges that she was employed as a tipped

waitress at defendants’ restaurant in Jackson Heights, New York
from approximately October 2012 to April 2015.
Compl. ¶¶ 5, 20, 50.)

(ECF No. 11, Am.

Notwithstanding her designation as tipped

staff, plaintiff alleges that she spent “several hours each day
performing non-tipped duties.”

Id. ¶¶ 5, 9.

Plaintiff regularly

worked in excess of 40 hours per week, and in excess of 10 hours
per day.

Id. ¶¶ 6, 8.

From approximately October 2012 through

approximately October 2013, plaintiff was paid a fixed salary of
$100

per

week,

and

from

approximately

October

2013

through

approximately April 2015, she was paid a fixed salary of $120 per
week.

Id. ¶¶ 56, 57.
Plaintiff

brought

this

suit

to

enforce

her

alleged

rights under the Fair Labor Standards Act (“FLSA”) and the New
York

Labor

Law

(“NYLL”).

Plaintiff

claims

principally

that

defendants failed to pay her minimum and overtime wages, id. ¶¶
88-111, that she did not receive “spread of hours” pay as required
by the NYLL, id. ¶¶ 112-115, and that defendants failed to comply
with NYLL recordkeeping and wage statement requirements, id. ¶¶
116-121.

This suit purports to be a collective action under the

FLSA, although no request for certification of a collective action
has been made.
On October 25, 2016, plaintiff requested a certificate
of default against defendants, on the basis that defendants failed
to respond to the amended complaint or otherwise appear in this
action.

(ECF No. 19, Declaration in Support of Request for

Certificate of Default.)
on October 27, 2016.

Default was entered against defendants

(ECF Entry of Default dated Oct. 27, 2016.)

2

Plaintiff moved for an entry of default judgment against defendants
on November 7, 2016, seeking default judgment, damages, attorneys’
fees and costs.

(ECF No. 22, Motion for Default Judgment.)

On March 13, 2017, plaintiff advised the court that
plaintiff and defendants reached a resolution, and submitted the
parties’ settlement agreement for court approval.
Motion for Settlement Approval.)

(ECF No. 25,

On April 7, 2017, the court

referred the motion for settlement approval to Magistrate Judge
Lois Bloom for a Report and Recommendation (“R&R”).
dated April 7, 2017.)

(ECF entry

On May 30, 2017, Judge Bloom issued an R&R,

in which she recommended that the motion for settlement approval
be denied without prejudice with leave to file a new motion for
settlement approval addressing the concerns raised in the R&R, and
that plaintiff be directed to withdraw her motion for a default
judgment.
The R&R notified parties of the right to file written
objections, pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure 72(b).

(ECF No. 26, R&R at 13.)

To date,

defendants have not filed an appearance with the court, nor has
either party objected to the R&R.

However, the parties filed a

joint letter on June 28, 2017, advising the court that a revised
agreement has been agreed upon, and that they intend to submit the

3

revised agreement for approval.

The statutory period for filing

objections has now expired.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1)(C). Where “no or merely perfunctory objections”
to the Report and Recommendation have been filed, however, the
district court reviews for clear error.

Caires v. JP Morgan Chase

Bank N.A., No. 16-cv-2694, 2017 WL 384696, at *1 (S.D.N.Y. January
27, 2017).

The district court is permitted “to adopt those

sections of a magistrate judge’s report to which no specific
objection is made, so long as those sections are not facially
erroneous.”

S.E.C. v. Nadel, No. 11-cv-215, 2016 WL 4718188, at

*2 (E.D.N.Y. September 9, 2016) (citations omitted).
Upon a review of the Report and Recommendation, and
considering that the parties have failed to object to any of Judge
Bloom’s thorough and well-reasoned recommendations, the court
finds no clear error in the R&R and hereby affirms and adopts the
R&R in its entirety.
Accordingly, plaintiff’s motion for settlement approval
is denied without prejudice.

The parties are granted leave to

file a new motion for settlement approval which addresses the

4

concerns raised by Judge Bloom’s R&R within 30 days of this Order.
The court further grants plaintiff’s request to withdraw her motion
for default judgment.
The

revised

motion

for

settlement

approval

and

settlement agreement should address the following as set forth in
the R&R:


Counsel for defendants must immediately file a
notice of appearance before this court;



The parties should include a brief recitation of
disputed facts to facilitate fairness review;



The parties must demonstrate that the financial
considerations in the proposed settlement agreement
are based on defendants’ substantiated financial
limitations;



The

parties

incorporated

should
in

clarify

which

plaintiff’s

claims

“best

are

scenario

[damages] calculation” of “$57,466.91 in overtime
wages”

(see

ECF

No.

25,

Motion

for

Settlement

Approval at 2), and why this figure differs from
her initial damages request of $196,919.17 in the
motion for default judgment (see ECF No. 22, Motion
for Default Judgment ¶ 16);

5



The parties should tailor the proposed release from
liability to the instant FLSA and NYLL action, and
should provide the court with a copy of the proposed
release that plaintiff will sign;



Counsel for plaintiff should submit contemporaneous
time

records

performed

that

warrants

demonstrate
the

that

dramatic

the

increase

work
in

attorneys’ fees from the amount requested in the
motion for default judgment;


The parties should revise the settlement agreement
to account for all nineteen payment installments,
and should specify contemplated timing for delivery
of each payment;



The

settlement

agreement

should

provide

that

payments to plaintiff and her counsel shall not be
comingled,

and

should

specify

the

amount

that

plaintiff shall receive in each installment;


The affidavit of confession of judgment of Manuel
Sanchez shall state the total sum of the judgment;
and



Counsel

for

plaintiff

6

shall

certify

that

all

settlement

documents,

including

the

motion

for

settlement approval, the settlement agreement, and
the release, and Judge Bloom’s R&R and this Order,
were translated to Spanish and provided to both
plaintiff and defendants.
SO ORDERED.

Dated:

_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

July 5, 2017
Brooklyn, New York

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